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Divorce in the United Arab Emirates

Mary Barton, a consultant solicitor with James Berry & Associates, provides a brief outline of the law applicable on divorce in the United Arab Emirates.

Mary Barton, consultant solicitor, James Berry & Associates

Mary Barton, consultant solicitor, James Berry & Associates

When people who are contemplating divorce first consult us as family lawyers in the United Arab Emirates, we have to ask certain preliminary questions about their personal circumstances, such as what the parties' respective religions are and whether the parties hold dual or multiple nationalities.  We also need to know whether any children of the parties were born out of wedlock and whether either of the parties has committed any indiscretions or have any criminal convictions, particularly if they pertain to, what are regarded in the UAE as, matters of 'honour', such as adultery or serious fraud. The importance of the answers to these questions will become apparent from this article which, by necessity, is a brief overview of the law surrounding divorce in the UAE.

Which law is applicable?
The United Arab Emirates is an Islamic State and the legal system is based on Sunni Sharia Law, in which there are different schools of jurisprudence, so that there may be variations in how the law is applied, depending on whether or not a party to family proceedings has persuaded the court to apply a specific legal principle by proving that it is relevant to them and should be applied.  If one of the parties is Muslim, then unless he or she has a country of nationality that has its own personal status law specific to Muslims (such as India or Iran), then the Sharia Law of the United Arab Emirates will be applied to the case.  If both parties are non-Muslims, then they, or one of them, may ask the court to apply the law of nationality.  If the parties are of different nationalities, then the law of the nationality of the husband will be the applicable law.  Non-Muslims may also accede to the application of UAE Sharia law.  If seeking to rely on any law that is not the UAE Sharia law, that law has to be produced to the court, attested as being the current law applicable in the country of nationality and translated into Arabic, subject to the court being able to interpret and apply that law to the case of which it is seised.  If the court is persuaded that it cannot interpret or apply the law of nationality or that law offends Sharia Law or Public Morals (for example, by clashing with local culture, custom and tradition), then the default position is that the UAE Sharia Law will be applied to the case. 

Recognition by UAE of foreign orders
The above are all factors that may play a part, not only in any proposed family litigation, but in determining in which jurisdiction any proceedings would be best pursued.  That said, a primary consideration has to be that the law in the United Arab Emirates does not provide for automatic recognition and enforcement of foreign family court orders.  It is therefore essential to ascertain what obligations between the parties may need to be enforced in the United Arab Emirates.  Naturally, where family relationships have broken down and there is hostility between the adults involved, there is the potential for lengthy litigation and high legal costs.  In many cases amongst the expatriate community in the United Arab Emirates, there will be off-shore bank accounts, multiple properties in various countries, of which some may be jointly owned and others may be in the sole name of the main bread-winner.  As will be seen below, the courts in the United Arab Emirates will concern themselves only with property located in the UAE.

Personal Status Law
The primary family law in the United Arab Emirates is to be found in the Personal Status Law: Federal Law No 28 of 2005, which is taken in conjunction with the Civil Code: Federal Law No 2 of 1987 and the Code of Civil Procedure and Civil Transactions: Federal Law No 11 of 1997.  The Penal Code: Federal Law No 3 of 1987 is also relevant because both adultery and fornication, ie unlawful sexual relationships, if proved, are criminal offences punishable by a term of imprisonment (not death by stoning as is the case in some Shia Islamic jurisdictions), and followed by deportation and prohibition of re-entry to the UAE if the offender is an expatriate.

The Personal Status Law sets out the obligations a husband and wife have to each other throughout their marriage.  They include an obligation on the husband to treat his wife kindly, to provide for his wife and their children in all respects and on a wife to treat her husband kindly, to safeguard her husband's property and home and to care for their children.

Islamic marriages
Since Islamic marriages are based on contract, negotiated between a wife's guardian and the husband or his representative, then on divorce the provisions of the marriage contract dictate a wife's capital claims, by way of any deferred or unpaid dowry.  In addition under UAE Sharia Law a wife, when divorced by her husband, may claim compensation for the moral harm of being divorced, which is capped at the equivalent of one-half of the husband's previous two years' salary.  If, for example, a wife is divorced by her husband after a long marriage and she is very unlikely to re-marry, then her compensation award will be higher than if she is divorced after a short marriage and is highly likely to re-marry.

For Muslim women there is a mandatory three month waiting period, during which time the divorce may be revoked, so the divorce does not become final and irrevocable until after the end of that period.  The three month waiting period allows clarification as to whether or not the wife was pregnant at the time of initial pronouncement of the divorce and is clearly important to establish paternity and legitimacy of any such expected child, as well as to ensure that following divorce the child is accommodated with the wife and maintained by the husband, during the wife's automatic custody period.  A husband has to continue to maintain and house his wife during this three month waiting period.

Non-Islamic marriages
Many expatriates continue to conduct their marital financial relationship in the UAE as they would if living in their home country.  Many Brits will continue a regime of joint finances, with both contributing financially to the well-being of the family, albeit in differing proportions according to their incomes.  If they then find themselves in proceedings for divorce in the UAE, a wife may claim back from the husband the financial contribution she has made during the marriage.  There are differing viewpoints on back-dating which could be in totality or limited to the last year, the last three years or the last fifteen years.  As non-Muslims will not have a marriage contract and may not have a nuptial agreement, a wife is entitled to request the court to award her a dowry, if the husband has sought the divorce and the wife resisted it, and may also apply for compensation.  Currently in the Emirate of Dubai, the dowry is set by the Court for Emiratis at 50,000 Dirhams, but is not capped for expatriate Muslims who marry at the Court.

If a wife instigates a divorce and does not prove harm against her husband, then her claim to any deferred or unpaid dowry and to compensation may be negated.

There is no provision for capital adjustment between a husband and wife under UAE Sharia Law.  If the husband and wife jointly own the family home and have jointly furnished it, then – unless one of them is able to persuade the court in separate civil litigation, by adducing cogent evidence of the source of funds and their remittance to the purchase of the property, that they have paid all or a greater part of the purchase price – then they will each be entitled to 50% of the property.  The courts in the UAE will not exercise jurisdiction over property that is not situated in the UAE and if co-owners are to litigate separately over any real property then they will need to litigate in the Emirate in which the property is situated.  The same applies to bank accounts and investments.  If husbands and wives are not agreed on sharing equally any joint assets, not located in the UAE, then they will have to litigate in the jurisdiction where those assets are located.  If, however, husbands and wives are able to reach agreement on separating their finances on divorce, then the court will approve any agreement that does not offend Sharia Law or Public Morals, even if the agreement includes provisions relating to assets that are not located in the UAE.  Such agreements may be registered at the UAE courts, including arrangements for children, in the course of divorce proceedings; however, for ease of enforcement, it is preferable to obtain a court judgment in terms of an agreement by starting a court case.

If there are children of the marriage, the Personal Status Law provides that during the mother's automatic custody period children will live with their mother and the father will have visitation rights. On the ending of the automatic custody period the converse applies. This will be so unless the court is persuaded to apply the law of nationality which, as mentioned above, would have to be produced in entirety, attested as being the current, applicable law and translated into Arabic.  For parties to proceedings, this can be financially onerous, especially if the law is such as that in England and Wales, where the writer suggests that in contested proceedings it would be extremely easy for an advocate representing one of the parties to persuade the court that it is not possible to interpret and apply the law to the instant case.  This is because the law of England and Wales is to be found not only in legislation and previously decided higher court cases but also includes European Regulations that are directly applicable and elements of the Human Rights Act – all of which have to be taken into account in considering the application or distinction of a specific principle of caselaw that may or may not  be analogous to or distinguishable from the case of which the court is seised.  Some of the principles that are applied in English and Welsh cases, such as the child's welfare being paramount and the welfare checklist could be argued to offend UAE Sharia law and Public Morals, where the family unit and a father's relationship with his children have perhaps a higher regard, so that if a mother re-marries, she loses custody of the children (if still in her automatic custody period) as children should not be raised in a 'stranger's household'.  In such a case, where the court is persuaded that the law of nationality cannot be interpreted (due to perhaps complexity or vagueness or ambiguity) the applicable law would default to the Sharia Law of the United Arab Emirates. 

The Civil Code provides that the age of majority is twenty one Lunar years, hence approximately twenty and a quarter Gregorian years.  The age of responsibility is seven Lunar years.  Until a child reaches the age of majority he/she must have a Guardian who is responsible for making major decisions as to the child's upbringing and education etc.  The Personal Status Law provides for a father automatically to be a child's Guardian, although a father may be stripped of guardianship if found not to be an appropriate person to exercise those responsibilities (eg he is guilty of a serious crime of honour).  A mother has automatic custody under the UAE Personal Status Law until a female child reaches thirteen Lunar years and a male child eleven Lunar years, which are approximately the ages of twelve and two-thirds, and ten and ten-twelfths Gregorian years, respectively.  If a mother is proven to be an unfit mother or re-marries, or if the father is Muslim and she is not, she may lose her custody rights when the child reaches the age of five Lunar years, or even before that age dependent on the specific circumstances.  Whilst adultery is often viewed in much of the western world as a symptom of a 'failed' marriage, it remains a criminal offence in the United Arab Emirates and if a mother commits adultery, then this is interpreted as a failure to promote the family's well-being and a failure to behave in a manner that puts the family's interests first, and may be a ground for loss of custody.

Providing for children (and their mother)
As a father is obliged to provide for his children, whether they are in his custody or not, whilst children are in a mother's automatic custody, a father has to maintain and accommodate his children and thereby also accommodate the mother.  The level of maintenance will depend on the father's proven ability to pay.  A mother may also claim a custodian's allowance and for provision of a maid, gardener, car and driver if the maid etc were provided during the subsistence of the marriage.  There is no formula for calculating the amounts and the writer has seen a variety of awards being made, some of which have made it very difficult for the father to continue to work and live in the United Arab Emirates.  Conversely, it is often the case with expatriates that there is simply not enough money to maintain two households in the United Arab Emirates and wives may find themselves having to radically reduce their expectations, accommodation and lifestyle, perhaps having to consider relocation to their home country, either with or without the children, on whom the father may have placed travel bans.  It is relatively simple and inexpensive for a father to place a travel ban on his children, so that they are unable to cross the border and leave the jurisdiction.  A mother is also able to place travel bans on her children.  It is, however, less easy for a mother to obtain removal of a travel ban obtained by the father than for the father to do so in respect of a ban obtained by the mother. 

It is not possible for a party to evade any obligations imposed on him or her by the courts in the United Arab Emirates.  Maintenance and money due under court orders are treated as 'debts due' and it is possible to obtain a travel ban against a debtor, preventing that person from leaving the United Arab Emirates.  If enforcement is necessary via the Execution Committee of the awarding court, debtors may find themselves arrested and imprisoned, until either their debt is paid or the parties reach a compromising agreement.  An international arrest warrant may also be made, so that a debtor is required to meet their obligation from a different country, or, in some instances, as the matter will have moved into the criminal sphere, extradition proceedings may be brought under one of the various agreements the UAE has with other countries.